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Wyeth to Face New Trial on Punitive Damages in Hormone Replacement Case
The American Lawyer
November 03, 2009
Donna Scroggin's hormone replacement product liability suit against Wyeth and Upjohn has been quite a roller coaster ride. At the spring 2008 trial of Scroggin's claim that the drug companies failed to warn of the increased risk of breast cancer resulting from their estrogen and progestin products, a Little Rock, Ark., federal district court jury awarded the breast cancer survivor $2.75 million in compensatory damages. In the second phase of trial, the jury hit Upjohn with about $8 million in punitive damages, and Wyeth with $19 million.
Those punies didn't last long, though. After post-trial motions, Judge William Wilson Jr. upheld the jury's liability finding and $2.75 million compensatory damages verdict against Wyeth and Upjohn. But he struck the testimony of Scroggin's punitive damages expert and vacated the punitive damages awards against the drug companies.
On Monday, the 8th U.S. Circuit Court of Appeals had its say. And on balance, the appeals court's 41-page ruling is a lot better for Scroggin -- and other plaintiffs in the hormone replacement multidistrict litigation -- than it is for Wyeth and Upjohn (which are both now part of Pfizer).
The 8th Circuit affirmed the lower court's $2.75 million liability and compensatory damages judgment against Wyeth and Upjohn. In so ruling, said Scroggin's trial counsel, James Morris Jr. of The Morris Law Firm, the appeals court set good precedent for plaintiffs on the causation and statute of limitations defenses that have marked the litigation so far.
And although the court upheld Judge Wilson's judgment as a matter of law with regard to punitive damages against Upjohn, it ordered a new punitive damages trial against Wyeth. "The evidence presented could allow a jury to find or infer that Wyeth was guilty of malicious conduct within the meaning of Arkansas law," the appellate court ruled.
"We are very, very pleased with the decision, which we believe is correct," said Morris. Erik Walker of Hissey Kientz, a member of the plaintiffs steering committee in the MDL, argued at the 8th Circuit for Scroggin. Pfizer sent us an e-mail statement on the 8th Circuit ruling, which read, in part: "We are pleased with the appeals court's decision to set aside the punitive verdicts, but disappointed that the court upheld the jury's liability decision. We are evaluating our legal options about next steps in this case. We continue to believe Wyeth and Pharmacia & Upjohn acted responsibly by fully informing federal regulators of their medicines' benefits and risks, and by following their direction regarding the information to be included on their labels."
Williams & Connolly represented Wyeth at trial and on appeal. Kaye Scholer represented Upjohn.
This article first appeared on The Am Law Litigation Daily blog on AmericanLawyer.com.
